GATT Article XXI, the Continuous Quest for Clarifying its Material Scope, and the WTO Panel Report on Russia - Measures concerning Traffic in Transit

It has been witnessed - especially for the last couple of years - that several states have relied on GATT Article XXI (or the so-called the WTO national security exception) to derogate from their WTO obligations. GATT Article XXI states that contracting parties are not precluded from taking any action which they consider necessary for the protection of their essential national security interests. In turn, such an exception has raised difficult legal questions since the inception of the GATT. First, is the authority vested in the contracting parties self-judging, or can it be reviewed by WTO adjudicatory bodies? Second, what is the standard for a review to be conducted in respect of Article XXI ratione materiae? This Article examines the reviewability and meaning of the WTO national security exception in depth. It also pays specific attention to Russia – Measures Concerning Traffic in Transit (DS 512), which is the first ever adjudication of GATT Article XXI by a WTO panel. Overall, this Article argues that while the question of its reviewability should no longer be disputable, there still exists a continuous quest to clarify the entire material scope of GATT Article XXI.